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When Reasonable Minds May Differ: Establishing ‘demonstrable error’ or ‘incorrect criteria’ in appealing a Medical Assessment Certificate

June 5, 2019

Chalkias v State of New South Wales [2018] NSWSC 1561

 

As set out in section 321 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the WIMA), the primary mechanism in terms of the resolution of a medical dispute is to refer the particular claimant for an assessment by an Approved Medical Assessor (AMS). The AMS is then to provide a Medical Assessment Certificate (MAC) setting out the details of their examination with the claimant, and the decision to which they have come in terms of the relevant dispute.

 

This is the manner in which most disputes regarding permanent impairment are resolved and, barring any ground for appeal, the MAC is conclusively presumed to be correct.

 

The somewhat narrow grounds for appeal are set out in section 327 of the WIMA, and include, in particular, the following:

(3) The Grounds for appeal under this section are any of the following grounds:

    (c) the assessment was made on the basis of incorrect criteria,

    (d) the medical assessment certificate contains a demonstrable error.

 

The grounds set out in section 327(3)(c) and (d) form the basis of the vast majority of appeals lodged by parties aggrieved by the findings of a particular MAC. Whilst the aforementioned grounds of appeal would seem, on the surface, somewhat broad, in practice a MAP will likely apply these grounds in a somewhat limited manner.

 

The recent matter of Chalkias v State of New South Wales [2018] NSWSC 1561 related to the application of the above provisions in respect of an appeal of a MAC relating to a psychological condition on the part of the Plaintiff. This case provides some clarity around what must be established by the party seeking to appeal a MAC to a Medical Appeal Panel (MAP) in order to be successful, and the relevant test to be applied by the MAP in responding to such an appeal.

 

In terms of the background to this matter, the Plaintiff had initially been assessed as suffering from a psychological injury due to both traumatic incident exposure and alleged bullying and harassment in the course of his service as a Police Officer. The Plaintiff initially made a claim on the basis of a report of Dr Selwyn Smith, in which the doctor assessed him as suffering from a 24% whole person impairment. The Plaintiff was referred for an independent assessment with Dr Prior, who assessed an 8% WPI. At the time of both assessments, the Plaintiff was working full-time with his pre-injury employer, completing restricted duties due to various physical injuries.

 

The Plaintiff was thereafter referred to AMS Dr Takyar, who indicated his view that the Plaintiff was suffering from a 15% WPI. This decision was appealed by the Insurer, with the MAP eventually revoking the MAC and assessing a 7% WPI, which disentitled the Plaintiff to any lump sum compensation as a result of his psychological condition.

 

The MAP had determined that the AMS’ assessment in respect of the PIRS Category of ‘Self-Care and Personal Hygiene’ reflected a ‘mild impairment’ rather than the ‘moderate impairment’ assessed by the AMS, and thus his assessment was adjusted accordingly.

 

This decision was eventually appealed to the Supreme Court – Administrative Law List for judicial review of the decision of the MAP.

 

At the hearing, it was argued by the Plaintiff that the MAP had no jurisdiction to substitute their assessment of WPI for that of the AMS, with the MAP having failed to establish first that the AMS’ assessment was either based on incorrect criteria or contained a demonstrable error.

 

Counsel for the Plaintiff relied heavily on the decision of Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887. It was argued that, based on the decision in Ferguson, it was incumbent on the MAP to first find that the assessment by the AMS contained a demonstrable error and/or was based on incorrect criteria before its own assessment was substituted in place, and that the failure to do so resulted in a jurisdictional error on the part of the MAP that ought to be corrected by way of judicial review.

 

In Ferguson, it was indicated that the assessments made by the AMS were ‘glaringly improbable’, and a demonstrable error/incorrect criteria was therefore made out on this basis.

 

In reliance on this judgment, therefore, Counsel for the Plaintiff contended that the relevant test to be applied by the Panel was whether the medical assessment was “glaringly improbable” and that this threshold had not been reached.

 

It was also submitted that the present case was indistinguishable from the circumstances addressed by Harrison ASJ in Parker v Select Civil Pty Ltd [2018] NSWSC 140, where Her Honour found that a difference in opinion as to whether the Plaintiff ought to be categorised in class 2 or class 3 was insufficient to amount to a demonstrable error or incorrect criteria for the purposes of section 327(3) of the WIMA.

 

Further, Counsel for the Plaintiff submitted that Dr Takyar’s assessment ought not be disturbed by the medical Panel because Dr Takyar assessed the Plaintiff, attained the history and investigated the matter fully whereas the Panel made its assessment on the basis of the evidence before Dr Takyar.

 

In her judgment handed down on 17 October 2018, Her Honour Adamson J rejected the submission that the Panel’s review is confined to cases where the medical assessment or some aspect of it is “glaringly improbable”, noting that this submission finds no support in the wording of the WIMA which requires only that an error be “demonstrable” or that there be “incorrect criteria”.

 

Her Honour stated that these expressions which have been the subject of judicial consideration are to be understood in accordance with their plain meaning, and indicated that it would be a misreading of Campbell J’s reasons to conclude that His Honour intended to suggest that the expression “glaringly improbable’, as stated in the judgment in Ferguson formed any part of the test for error in the context of section 327 or 328.

 

Her Honour noted section 327(4) of the WIMA provides that before the First Defendant’s appeal could proceed, the registrar was required to be satisfied that (at least) one of the grounds for appeal existed. The Panel stated in its reasons that the registrar was satisfied that at least one of the grounds of appeal existed at: paragraph 26 of the Panel’s reasons.

 

At paragraph 38 of its reasons, the Panel found that Dr Takyar had “fallen into error” when one compared his findings with the descriptors in the evaluation guidelines. In substance, the Panel was satisfied, as it is apparent from its reasons, that Dr Takyar had made his assessment on the basis of incorrect criteria within the meaning of section 327(4)(c) of the WIMA since he had not applied the guidelines correctly and that this amounted to a demonstrable error within the meaning of section 327(4)(d) of the WIMA. The Panel expressly adopted the First Defendant’s submissions to this effect in its reasons which was sufficient to incorporate the submissions which had been outlined earlier in the reasons into the Panel’s own reasons.

 

Her Honour stated that this finding of error indicated that the Panel did not misapprehend its jurisdiction. She states a decision maker in the position of the Panel is required to set out “the actual path of reasoning” by which it arrived at its assessment of WPI.

 

Having been satisfied of the error relating to the grading with respect to selfcare and personal hygiene which fell within 2 subparagraphs of section 327(4) of the WIMA, the Panel was both entitled and obliged to review the assessment with respect to that item. That the Panel came to a different assessment on the selfcare and personal hygiene category does not convert its initial finding of error into a mere difference of opinion.

Her Honour therefore concluded that the Plaintiff had not made out his claim for reliefs since she was not persuaded that there was any error of law on the face of the record or a jurisdictional error in the Panel’s assessment on appeal from the medical assessor.

 

In terms of future appeals of MACs, the reasons provided by Her Honour in the above noted judgment make it abundantly clear that, before the Appeal Panel has the jurisdiction to even consider whether a different class rating in terms of any of the PIRS categories would be more appropriate, the Panel first has to be satisfied either that the assessment was made on the basis of incorrect criteria, or that the MAC contained a demonstrable error.

 

Failure on the part of the Appeal Panel to do so, as was submitted by the Plaintiff in this matter, would amount to a jurisdictional error, and any determination made thereafter would need to be set aside.

 

In terms of the broader implications of this decision, along with Her Honour’s discourse regarding the application of the appeal process, it is imperative that, before making any assessment as to what may or may not be a more appropriate determination of a Worker’s level of functioning in respect of any of the PIRS categories, the Appeal Panel must first determine either that the AMS has made an assessment on the basis of incorrect criteria, or that the MAC contains a demonstrable error.

 

Whilst the Plaintiff attempted to submit that the Panel in this matter could only be satisfied that the AMS had fallen into error in circumstances where the assessment was ‘glaringly improbable’ as per the words used in the judgment in Ferguson, Her Honour refused to accept this submission, noting that it would find no support in the WIMA, and indicating that it appears to have been used by Campbell J only in reference to the reasons provided by the Panel in that particular matter.

 

Her Honour went on to note that in order to find error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines and held that whether the findings fell into Class 2 or 3 was a difference of opinion about which reasonable minds may differ. Whether Class 2, in the Appeal Panel’s opinion, was more appropriate, does not suggest that the AMS applied incorrect criteria contained in Class 3. Nor does the AMS Reasons disclose a demonstrable error.

 

In other words, it requires more than a simple difference in opinion as to which class rating would be more appropriate in terms of any given PIRS category in order for an Appeal Panel to be entitled to substitute its own decision. Rather, it is incumbent on the Panel to make a determination first that the assessment of the AMS was in fact an ‘error’ that must be set aside.

 

What does this mean for future claims?

 

As such, and having regard to the aforementioned case law, the current decision, and its interaction with prior determinations of the Supreme Court, indicates that it is imperative that the Appeal Panel first conducts an exercise into determining, and thereafter makes a determination, that the decision of the AMS was based on incorrect criteria, or that the decision contained a demonstrable error, prior to substituting their own assessment in terms of any of the relevant PIRS categories.

 

This is not merely to be conducted on the basis that the Appeal Panel came to a different conclusion as to what would have been a more appropriate assessment; rather, the Panel must first come to the conclusion, and specifically indicate such a view, that the determination of the AMS was an error and was not open to be made on the material before him or her.

 

In terms of how this would affect the manner in which appeal submissions are made in the future, we consider it is imperative that the Panel is directed towards making such a decision before any determination as to a potentially more appropriate assessment is made.

 

Further, in light of the fact that Her Honour considered it was sufficient that the Panel referred to the appeal submissions in their reasoning to justify the conclusion that the AMS had fallen into error, we consider it would be prudent to include references to all of the relevant evidence that would point to the AMS’ decision having been made in error within the submissions so that the Panel may refer to same in making their decision.

 

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